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small fry

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small fry last won the day on February 10 2017

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  1. If the plaintiff's attorney has time to read your brief and objections prior to trial, they will likely consider dismissing. If they don't have time, or if they are disorganized and unaware of the filing, then plaintiff's attorney may show up at trial and bluff their way through it with some simple arguments. Be sure to include a copy of Midland Funding v Romero (from the Orange County Appellate Division) in your trial brief and with your objections to their Declaration in Lieu.
  2. If this case were my mine, I would file a Notice of Appeal within the 30 day window following entry of the trial court judgment. Instructions for filing an Appeal in a Civil Limited case are here: http://www.courts.ca.gov/documents/app101info.pdf Its disappointing, although not a complete surprise that Beekeeper's trial court was unfamiliar with the relevance of Sierra v. Hale or Midland v. Romero (even though they should be familiar with both). But the Appellate Panel overseeing the trial court's decisions will certainly need to know and consider both decisions carefully. That is what the Appellate Panel is there for. The panel may find Sierra v. Hale instructive as to whether a jdb's trial witness can properly authenticate a third party's documents when the jdb attempts to enter them into evidence over a defendant's hearsay objection. Below shows how the Orange County Appellate Division followed the reasoning in Sierra in reaching their decision in Midland v Romero: "Defendant also made a hearsay objection to Smith’s declaration, which contained documentation purportedly indicating Defendant’s indebtedness and Plaintiff’s ownership of the account as the assignee." ... "Defendant relies on Sierra Managed Asset Plan, LLC v. Hale (2015) 240 Cal.App.4th Supp. 1 (Sierra). In Sierra, the plaintiff was the assignee of an unpaid credit card account originating from Citibank, N.A. (Citibank) (Id. at p. 3.) Plaintiff filed a section 98 declaration of Marc Roberts. (Id. at p. 4.) The declaration attached exhibits showing assignments of the account, the account agreement, and account statements reflecting the unpaid balance due. (Ibid.) Roberts was personally present at trial and was cross-examined by the defendant. (Ibid.) The trial court, over defendant’s objections based on lack of personal knowledge and hearsay, received the declaration and exhibits. (Ibid.) None of the documents attached to the declaration were created by plaintiff, and Roberts was not the authorized custodian of the Citibank documents. (Id. at p. 8.) Roberts stated in the declaration that he had never worked for Citibank and “did not have personal knowledge about the account or charges in question, other than the information he knew from acquiring the documents from Citibank.” (Id. at p. 9.) The defendant testified and “acknowledged the account, but denied any knowledge of the purchases or the balance due on the account.” (Id. at p. 4.) The Sierra court held Roberts’s declaration and testimony did not meet the “necessary foundation,” and that “at best,” his declaration and testimony established that plaintiff as assignee received records originating from Citibank. (Id., at p. 9) That court concluded the records were inadmissible hearsay and the result was prejudicial. (Id. at pp. 9-10.) "... "We find Sierra instructive and respectfully disagree with Unifund’s holding concerning the business records exception to hearsay." "Here, Smith had personal knowledge that the documents were part of Plaintiff’s business records, but did not satisfactorily establish those documents were a part of the prior creditor’s business records under Evidence Code section 1271. That is, there was no evidence regarding the mode of preparation or other information indicating trustworthiness. Therefore, the trial court abused its discretion by overruling Defendant’s objections to Plaintiff’s evidence." It's also worth noting here that, prior to Sierra v. Hale or Midland v. Romero, the San Diego Appellate Division employed very similar reasoning in an unpublished ruling in favor of CIC member easy619. The Appellate Division there decided that the judgment entered by the trial court (against easy619) was not supported by sufficient evidence and it was unanimously reversed. In that unpublished opinion, the Appellate Division found that: The jdb's sole witness at trial could not properly authenticate Bank statements as the witness was not the custodian of records, nor did the witness testify that they were familiar with the preparation of the records. Rather the witness testified that they were an employee of the parent company of the jdb. Further: The jdb's witness did not testify that the parent company of the jdb was in any way involved in the preparation of the records, and there was nothing in the record to reflect any connection between the parent company and the jdb. Thus: Under these circumstances, the trial court erroneously applied the Evidence Code section 1271 business records exception and improperly admitted the records submitted by the jdb. This San Diego Appellate Division opinion was not published, but again, their reasoning was very similar to that of the later court in Sierra.
  3. Yes, Ian Chowdhury - who along with the equally esteemed Calawyer, continue to do so much to protect and advance consumers legal rights here in California. We are fortunate to be able to benefit from their tireless efforts, dedication, and professionalism. Just a couple of great guys. We wish them well this holiday season!
  4. California consumers may find it helpful to be aware of another favorable Opinion recently certified for publication by the CA Courts: http://www.courts.ca.gov/opinions/documents/JAD16-06.PDF Happy Holidays!
  5. More info pertaining to Midland specifically is here: www.midlandcfpbsettlement.com Click on the Frequently Asked Questions page.
  6. Ugly. Well, I see the opinion states the Court received request for publication, after its initial ruling affirming judgement for the Plaintiff. So, whom may request publication of an Appellate ruling, in order to make it citable? Is it only parties to the suit? And how much time is allowed to file such a request for publication? A certain (fairly recent) Appellate ruling in San Diego, were it published and citable, would be another helpful counter balance to this unfortunate one. Hint, hint.
  7. "Sierra Managed Asset Plan v. Hale, (2015)_ Cal. App. 4th_, 2015" is the cite for the time being. Because it's so recent, you'll want to print out copies, and attach them to your documents as exhibits. By the way, if you go to trial, try to find plaintiff's attorney before your case is called. Make sure they have seen your objections and trial brief. They may be unaware of your filings with the court. Give them copies if they have none. They may decide to dismiss the case once they see you are well prepared.
  8. Here is the recent opinion, mentioned in other threads, from the Appellate Division of Ventura County Superior Court. This one is certified for publication. This is a very good read. Sierra Managed Asset Plan, LLC. v. Hale (2015) _ Cal.App.4th _ , 2015 WL 5432647: The Superior Court Appellate division reversed a limited civil collection case judgment for plaintiff. The Appellate Division concluded that the trial court erred in admitting exhibits attached to a declaration, because the declarant had failed to satisfy the requirements of the business records exception to the hearsay rule. (County of Ventura, filed August 20, 2015.) Below is a link to a pdf file of the Court's opinion: http://www.courts.ca.gov/opinions/documents/JAD15-12.PDF
  9. Thanks. I think reading the decision in this case can help one in clarifying and better understand one's arguments. As Calawyer recently noted: "Even if you fail to serve a subpoena on the witness most of the testimony in a typical CCP 98 affidavit, and most of the documents attached as exhibits, should NOT be admissible at trial IF YOU OBJECT. This is because CCP 98 itself says, "To the extent the contents of the prepared testimony would have been admissible were the witness to testify orally thereto, the prepared testimony shall be received as evidence in the case..." Most CCP 98 declarations do not contain testimony that would be admissible if the witness testified orally on the stand. The declarations usually do not set forth sufficient foundation. They usually contain hearsay that does not meet any exception. So even if you do not serve a subpoena, a judge applying California rules of evidence should not admit a typical CCP 98 declaration into evidence."
  10. Yes, this is the big news that anyone recently sued by PRA or Midland should be reading. If you are currently or were recently in litigation with either of them, be sure to download and read the consent orders here: http://www.consumerfinance.gov/administrativeadjudication/
  11. This is HUGE. Yes, this absolutely will benefit many CIC members sued by Midland and PRA. If that's you, be sure to download and read the Consent Order dated last Thursday, Sept. 3rd. Great news for consumers.
  12. http://www.nclc.org/images/pdf/unreported/midland-v-edwards-12132013.pdf The Sonoma Appellate Division's decision in this case is a good read. Particularly in regards to CA CCP Sec.98 and the Declaration in Lieu of Testimony with attached documentary exhibits regularly filed by Midland and the other JDB's here.
  13. Since the decision of the Apellate Division in @easy619 case is so helpful regarding the testimony typically provided by Midland's witness, it would be great for those of us going to trial to be able to properly cite it, at this point, prior to its publication. San Diego Law Library advises "if you cite an unpublished decision, even one that is going to be published but is, as yet, available only in a computer database such as Westlaw or Lexis or in the Daily Appellate Reports, you must attach copies of the opinion to briefs that you file with the court and serve on any other parties. California Rules of Court, Rule 8.1115." So, it seems to already be citable, provided you include a copy of the opinion in you trial brief. How do we cite the Court's opinion this case? And how do we obtain a copy?
  14. Excellent and interesting reading. So, Midland failed to satisfy the CACI for Account Stated claims due to insufficient evidence of any expressed or implied agreement between you and Midland. In your case, Midland actually mailed their two initial notices of purchase to someone else's address, and thereby you were not able to even implicitly acknowledge the debt. And evidence code 1721 (the business records exemption to hearsay) could not correctly be applied with plaintiff's witness giving incompetent testimony: Q: Have you ever worked for CHASE BANK NA? A: No. Q: Just to be clear, you have never been the custodian of records for CHASE BANK NA? A: No. Q: So you did not prepare or generate any of the records in question? A: No. Q: Nor were you present when CHASE BANK prepared and generated them? A: No. Interesting however that the panel did not cite CCPs 96 / 97 in their decision, given those statutes clear wording and plaintiff's obvious failure to comply. (Does there really need to be clarifying case law available to appellate panels even for statutes requiring no clarification?(!)
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